FCC Chairman Tom Wheeler's proposal to let ISPs charge Web services for an Internet fast lane drew condemnation from many net neutrality advocates, and now two members of the commission have expressed doubts about the plan as well.

Jessica Rosenworcel and Mignon Clyburn, the two Democratic members of the commission other than Wheeler, spoke about the chairman's proposal yesterday. In a speech at a gathering of state library agencies, Rosenworcel called for delaying a vote on the proposal:

Network neutrality is the principle that consumers can go where they want and do what they want on the Internet, without interference from their broadband provider. The American Library Association and the library community have long been champions of network neutrality and an open Internet. Libraries, of course, know that an open Internet is important for free speech, access to information, and economic growth. I also support an open Internet. So I have real concerns about FCC Chairman Wheeler’s proposal on network neutrality—which is before the agency right now.

To his credit, he has acknowledged that all options are on the table. This includes discussion about what a “commercially reasonable” Internet fast lane looks like. While I do not know now where this conversation will head on a substantive basis, I can tell you right now I have real concerns about process.

His proposal has unleashed a torrent of public response. Tens of thousands of e-mails, hundreds of calls, commentary all across the Internet. We need to respect that input and we need time for that input. So while I recognize the urgency to move ahead and develop rules with dispatch, I think the greater urgency comes in giving the American public opportunity to speak right now, before we head down this road.

For this reason, I think we should delay our consideration of his rules by a least a month. I believe that rushing headlong into a rulemaking next week fails to respect the public response to his proposal.

The FCC is scheduled to vote on a notice of proposed rulemaking (NPRM) on May 15. This would open a new public comment process, but Rosenworcel explained that it would also end the so-called "Sunshine Period," another good opportunity for debate.

"Ex parte presentations are permitted until the start of the Sunshine Period, which begins with the issuance of a public notice one week before the public meeting at which the Commission will consider an NPRM or final rule," the FCC explains. "Unless an exemption applies, outside parties—other than members of Congress and other federal agencies—may not make presentations, oral or written, on items that will be considered at the public meeting once the Sunshine Notice is issued."

Rosenworcel wants to delay the onset of that Sunshine Period, noting that "we have a challenging set of court decisions that have led us to this point. So I think the agency’s legal staff should be holding forth, answering questions, and explaining what is before us with regular sessions—not in Washington, but over the Internet, through social media, and broadly accessible to the public."

UPDATE: The FCC has waived enforcement of the Sunshine Period, meaning that presentations and public comment can be submitted until the end of May 14. Wheeler's proposal is still on the agenda for the May 15 meeting, however.

Clyburn wants to prohibit pay-for-priority deals

"Over 100,000 Americans have spoken. And during the past few weeks, tens of thousands of consumers, companies, entrepreneurs, investors, schools, educators, healthcare providers and others have reached out to ask me to keep the Internet free and open," Clyburn wrote.

Clyburn referred back to deliberations around the FCC's 2010 Open Internet Order, which was largely vacated by a federal appeals court this year. Wheeler's proposal would reinstate some of the rules from that order, such as a ban on blocking content, but with an allowance for paid fast lanes.

Clyburn voted to approve the 2010 order but yesterday noted that she did so with some reservations. "First, I made clear that I would have applied the fixed rules to mobile services," she wrote. "Second, 'I would have prohibited pay for priority arrangements altogether.'"

Further Reading

Pay-for-play is fine for Web users? That's not what the FCC said in 2010.

Clyburn also hinted that she might support reclassifying broadband providers as common carriers. She wrote that "the D.C. Circuit disagreed with the FCC’s legal approach concerning the no blocking and nondiscrimination rules and remanded the issue to this agency. Unlike many, I actually see this remand as a unique opportunity for us to take a fresh look and evaluate our policy in light of the many developments that have occurred over the last four years."

The court said that the FCC could not issue common carrier obligations on broadband providers without first reclassifying broadband as a telecommunications service.

Clyburn finished her post by saying, "I am listening to your voices as I approach this critical vote to preserve an ever-free and open Internet."

UPDATE: FCC Commissioner Ajit Pai has said that he has "grave concerns about the Chairman's proposal on Internet regulation." He asked that the vote be delayed so the FCC can focus on getting the upcoming spectrum auction right.

Tech companies speak out against Internet fast lanes

Also yesterday, dozens of tech companies including Amazon, Dropbox, Facebook, Google, Microsoft, Netflix, reddit, Tumblr, Twitter, and Yahoo sent a letter to the FCC (PDF) asking the commission to halt any plan allowing payments from Web services to ISPs in exchange for speeding up traffic.

"Instead of permitting individualized bargaining and discrimination, the Commission’s rules should protect users and Internet companies on both fixed and mobile platforms against blocking, discrimination, and paid prioritization, and should make the market for Internet services more transparent," the letter said. "The rules should provide certainty to all market participants and keep the costs of regulation low."

It has some first-amendment overtones. If you just happen to be in the business of disseminating information that is embarrassing to entrenched powers, it's not inconceivable that ISPs could use their throttling ability as leverage against you.

Unless you lay dedicated fiber for certain sites, you can't speed up some sites without slowing others down. And the dangerous element there is that no one is telling them who to slow down, or what guidelines there are for that type of throttling. As a result, they get unrestricted censorship permissions on what is arguably the world's most important communication medium in all of world history.

It might be that, coincidentally, Comcast starts throttling Consumerist after they're rated one of the worst companies in the US (again). "We're experiencing network issues," they say. "Our engineers are investigating the cause of the issue and we expect full resolution shortly." Maybe things get better after a few days. Maybe they don't.

Or, maybe, a large news media organization partners with Comcast on a fast-lane for traffic... and their ideological opposite sites and organizations get a little slower at the same time.

It's a subtle but dramatically powerful effect, and one I'd rather not make possible.

In summation: this isn't a direct infringement, but is a clear and direct threat to the ability of dissenting voices to ensure they get some sort of representation, and the chilling effect, more than any direct infringement, is the issue here.